Use of Force 2009

Posted 9/27/09

THE CHASE IS ON

Are foot pursuits prone to result in bad shootings?

     By Julius (Jay) Wachtel. Two weeks ago Los Angeles County Sheriff’s deputies were looking for two robbery suspects when they spotted a pair of possible candidates.  As they approached the men one ran off. A deputy gave chase. What happened next isn’t clear, but it seems that at some point the fleeing man made a motion that the deputy considered threatening, leading him to fire three times, twice through a wooden gate. Darrick Collins, 36 was fatally wounded.  It turned out that all he had on his person was a cell phone and twenty-four tablets of an illegal street drug.

     Collins was not one of the robbers. He had been recently arrested on drug charges and probably ran to avoid getting busted again.

     Collins was the tenth person fatally shot by LASD deputies in 2009. An uproar led Sheriff Lee Baca to pledge that an inquiry would be completed in ninety days. A career law enforcement officer, Baca isn’t particularly loved by his troops, who generally consider him far too liberal for their tastes. On the other hand, Baca enjoys excellent rapport with community groups, and his promise to promptly resolve the matter helped defuse things. He’s also commissioned a panel of experts to look into deputy-involved shootings. Whether to change foot pursuit policy is one of the issues they’re to consider.

     Baca’s moves were welcomed by Michael Gennaco.  Head of the Office of Independent Review, the county agency that oversees complaints against the Sheriff’s Department, Gennaco has criticized delays that leave the public in the dark about shootings for eighteen months or more. It now seems that at least in “mistaken fact” incidents, where deputy error is evident, administrative and criminal inquiries will run simultaneously.

     Less than a week after Collins’ death LASD deputies shot and killed three more persons.  These unconnected incidents brought the number killed by deputies this year to thirteen, more than twice the number for all of 2008, when five persons fell to deputy gunfire.  But if there was a positive side to the most recent shootings, it’s that they differed from the Collins killing in one critical respect: this time each suspect was armed.

  • 9/19/09. A 17-year old gang member who had evaded deputies was shot and killed when he pointed a loaded handgun at officers during a later encounter.
     
  • 9/20/09. A robbery suspect exchanged gunfire with deputies, wounding an officer in the leg before he was shot and killed.
     
  • 9/20/09. A reputed gang member was shot and killed when he pulled a loaded handgun while struggling with a deputy in a motel parking lot. The man was being questioned for acting suspiciously.

Click here for the complete collection of use of force essays

     As we’ve said before, the environment of policing has a profound impact on how officers perceive and respond to threats.  To get a better perspective on what L.A. County’s deputies face we looked up the remaining nine fatal shootings in the Los Angeles Times index on ProQuest, an online database.  All but one were found.  (Keep in mind that the accounts were sketchy and based mostly on official reports.)

  • 8/8/09.  Deputies encounter a wanted parolee.  When they move in to make an arrest he tries to grab a deputy’s gun.
     
  • 8/7/09.  Deputies break up an out-of-control party at a private residence. For unknown reasons one of the partygoers draws a gun.
     
  • 8/1/09.  Deputies responding to a 911 call are attacked by a man wielding two meat cleavers. He had just broken into a woman’s apartment.
     
  • 7/10/09.  Deputies respond to a 911 call from a woman who says she was threatened with a gun. They pull over a parolee leaving the area. He runs off and is pursued on foot.  A deputy shoots him, apparently mistaking a cell phone for a gun.  A loaded gun is found in the suspect’s car.
     
  • 7/5/09.  Deputies confront several teen gang members.  One runs off and is pursued.  He allegedly points a gun at the deputy.  A loaded handgun is recovered at the scene; however, bystanders say there was no gun.
     
  • 4/26/09.  The robber of a fast-food restaurant points what turns out to be a replica pistol at deputies.
     
  • 3/15/09.  Deputies responding to a 911 call are attached by a drug-crazed man wielding a machete and a baseball bat.
     
  • 1/24/09.  Gang deputies confront a gang member carrying a gun.  He runs away, tries to hide, then allegedly points a gun at officers.

     It’s a mixed bag. Yet there are some common threads. Obviously, each of the deceased would still be alive today had they complied with deputies.  As one might expect, the influence of guns and gangs is clearly evident. Sheriff Baca’s concerns about foot pursuits are also borne out.  Four shootings took place during foot chases, including both instances where deputies killed in error.

     Cops know that foot pursuits can be a recipe for disaster.  Chases place officers in unfamiliar surroundings.  Often alone, lacking access to the normal tools of policing, they get wholly dependent on their guns for survival. Pumped up on anxiety and adrenaline, with little opportunity to observe or reflect, it’s inevitable that their split-second decisions will occasionally prove to be tragically wrong.

     Training only goes so far.  When decades of study and experimentation yielded no discernible gains in the ability to safely pursue vehicles, most police agencies wound up forbidding car chases except under tightly specified and controlled circumstances.  Foot pursuits are even more difficult to calibrate. They don’t happen along clearly demarcated roads.  Neither can they be choreographed with the assistance of radios and aircraft. Unless academies can produce Supercops who are unaffected by stress and fatigue and can see in the dark, prohibiting one-on-one foot pursuits may be the only option.

     It would be informative to compare the characteristics of LASD’s fatal encounters with those reported elsewhere.  LASD is but one agency, and there might be something about it and its officers that could use fine-tuning.  For example, deputies must spend years working the jails, so they accumulate far less field experience than their municipal police counterparts. What’s more, in 2008 the Office of Independent Review issued reports chastising the LASD training academy and the department’s background investigation process for yielding less-than-sterling recruits.

     Improvements in selection and training are always welcome.  There may also be substantial differences in officer propensities to shoot (see, for example, the case of Cleveland officer Jim Simone.) But there will always be a certain elephant in the room. Unincorporated inner-city areas such as those patrolled by L.A. County deputies brim with gangsterism and violence, frequently leading to encounters that any officer, not matter how well trained, would be hard-pressed to peaceably resolve. In the mean streets of SoCal, tragic conclusions to police-citizen encounters aren’t all that surprising.  We’ve said it before and it bears repeating: unless we can convince citizens to act kindly and gently, getting cops to do so may be out of reach.

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Posted 5/17/09

KICKING A SUSPECT WHEN HE’S DOWN

There may be an explanation for kicking a
compliant suspect in the head, but there’s no excuse

     By Julius (Jay) Wachtel. One can imagine how frustrated El Monte (Calif.) officers must have felt the other day when the arrest of a wanted parolee turned into another cause célèbre for the ACLU.

     A helicopter video depicts the event in remarkable detail, up to the moment that a cop, gun drawn, violently kicks the proned-out suspect in the head, drawing a startled gasp from the camera operator.  Criminal justice experts who viewed the blow called it lots of things, none nice.  “Outrageous” said one; “one of the worst incidents of this kind that I've seen” said another. Even an ex-cop found something to criticize:   “You have an individual who is compliant....I don’t understand why an officer would want to get so close.”

     The incident in the hardscrabble Los Angeles suburb of 122,000 began when an officer tried to stop a vehicle occupied by three heavily tattooed members of the Florencia street gang. The car took off, precipitating a wild chase.  During a slow-speed stage an occupant jumped out and surrendered. Eventually the fleeing vehicle careened careened off a parked car and stalled. As officers approached a second passenger gave up.  But the driver, parolee-at-large Richard Rodriguez bolted.  Police soon cornered him in a yard.

     In the video we see the man lie down and spread out his arms, as though he’s done it a thousand times before.  An officer grasping a pistol approaches, then for no obvious reason delivers the formidable kick. More cops arrive.  Rodriguez is handcuffed, although apparently not without receiving several flashlight strikes to the torso.

     El Monte’s beleaguered police chief refused to pass judgment. “I worked internal affairs for four years and I have learned that you do not make a decision in a vacuum,” he said.  “I do not know what was in the mind of that officer, as to why he did that. I saw the individual turn his head toward the officer.”

     On the other hand, police union lawyer Dieter Dammeier knew exactly what the cop had been thinking.  “When you're going to have to take a bad guy into custody physically it is sometimes going to be aggressive and the cops are there to win...Better safe than sorry.” Dammeier later insisted that the officer acted within policy:

    The individual officer saw some movement. He feared the parolee might have a weapon or be about to get up. So the officer did what is known as a distraction blow. It wasn’t designed to hurt the man, just distract him.... [El Monte officers] are trained to deliver a distraction blow to stop a [suspect] doing what they planning on doing.

     “Distraction blows” isn’t a brand-new concept.  In an infamous 2004 incident an LAPD officer ran up to a car theft suspect who was being restrained by other cops and repeatedly struck him with a flashlight.  It was all caught on camera.  LAPD’s then-new head, Bill Bratton, was surprised to learn that department guidelines allowed so-called “distraction blows” to the arms and shoulders (but not the head) of combative persons.  (Bratton did away with heavy flashlights and fired the officer. The blows’ lightly injured recipient settled for a cool $450,000.)

     California law authorizes “any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense to use reasonable force to effect the arrest, to prevent escape or to overcome resistance” (P.C. 835a). Police agencies are required to adopt use-of-force policies consistent with this statute. For example, the Riverside Police Department considers kicking (along with punching, batons and less-than-lethal munitions) appropriate when facing “threatening actions of an aggressive suspect.” Even then officers are cautioned to “avoid striking those areas such as the head, throat, neck, spine or groin which may cause serious injury to the suspect.”  Distraction blows aren’t mentioned.

     Enough said.  Most law enforcement professionals are repelled by the thought of using force on compliant suspects.  Really the issue here isn’t about kicking the head, a potentially life-threatening act that’s unacceptable except under the gravest circumstances, but whether the cop did so maliciously.  Did he think he was about to be attacked?  Did he even intend to strike the head?  To lay such a heavy blow?  Might another reasonably well-trained and well-intentioned cop have done the same thing?

Click here for the complete collection of use of force essays

     The incident is under investigation, and we will be interested to learn the outcome.  We’re also curious about the officer. According to the San Gabriel Valley Tribune he owns an Internet e-commerce website, www.torcidoclothing.com, that sells “authentic jailhouse wear,” mostly t-shirts bearing text and images that signify gang membership and drug use. (“Torcido” means “twisted” or “crooked”.)

     Officers are individuals, with unique backgrounds, personalities and temperaments.  Two cops standing in the same spot and observing the same event can react completely differently. And while it’s true that fear and adrenaline-charged incidents such as chases have led to beatings and worse, officers usually hold their emotions in check. Yet, as we’ve pointed out, police are reluctant to concede error. Cops whose blunders can be somehow justified often escape any consequences at all, while those whose mistakes can’t be overlooked (perhaps, because they’re caught on video) are vilified.

     In the “old” days wizened Sergeants would get on the radio at the end of a chase and blurt out something like “watch your force!” Now that we’re in the twenty-first century there are probably more sophisticated approaches. Selection, training and supervision are key. We must avoid hiring applicants who might easily panic, get angry or lose their moral compass.  We must intervene when active-duty officers go astray and if possible help them reform. And real-time supervision (not just passive “oversight”) is always essential.

     Yes, when serious mistakes happen blame must be assessed. But policing would be much farther along if we’d expend half as much effort in preventing foul-ups as in putting Humpty-Dumpty back together again.

Update (12/30/09): L.A. County D.A. declines to prosecute officer, calls kick “reasonable”

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Full disclosure: at his university’s urging, this blogger responded to a reporter’s inquiry about the ethical implications of running a business whose products glorify gangster life. For the writer’s comments click here.


Posted 4/19/09

GOOD COP / BAD COP

NYPD’s handling of a student protest may have missed its mark

     By Julius (Jay) Wachtel. April 10, 2009 was a blustery day in Gotham. During the early morning hours about twenty members of the “New School in Exile” burst into a building at 65 5th. Avenue, New York City. Carrying rucksacks, chains and padlocks they shoved aside a startled security guard, bound themselves together and pledged not to leave until the New School’s embattled president stepped down.  A banner on the roof announced the takeover.  Dozens more protesters staged a noisy rally outside.

     It wasn’t the first time. In December 2008 angry students occupied a cafeteria (conveniently, one might think) for three days. Again, Bob Kerrey was the target.  Hired in 2001 to bring order and financial stability to the liberally-minded campus, the former U.S. Senator and Medal of Honor recipient was planning to increase tuition.  After going through five Provosts in seven years, he had also appointed himself the school’s chief academic officer, an odd move considering that he lacked a Ph.D.  Temporarily humbled by a faculty no-confidence vote, Kerrey defused things by promising that everyone, students included, would have a say in charting the school’s future. He also started a blog.

     Now, five months later, things were back to square one, and this time Kerrey called in the cops.  That’s when the “fun” began.

     NYPD deployed two contingents of officers, one to enter the building and another to clear its exterior.  An official video depicts what happened inside. Everyone seems almost eerily composed. Although students refused to leave voluntarily, they didn’t resist and were cooperative to a fault. Led by a captain who exuded calm, officers crisply went about their business. A city videographer captured everything and promptly uploaded it to You Tube. It’s a brave new world, indeed!

     But as an unsanctioned amateur video reveals, things were going down far less smoothly on the outside. The video begins with a shot of officers forcefully blocking a side door to keep protesters from leaving. Officers also repeatedly doused students with pepper spray, an action that an NYPD spokesman said didn’t happen until shown the video.  Meanwhile, off camera, some demonstrators reportedly flung portable barricades at police and ran off.  Cops chased them down the street, catching one and wrestling him to the ground. A demonstrator is also depicted exchanging angry words with an officer, who swats at him, causing the youth to lose his balance.  As the cop disinterestedly walks away other officers jump on and handcuff the man.

     Overall the impression is hardly favorable. Police seem disorganized.  Officers are reacting impulsively, dashing to and fro and tangling with protesters who try to leave. If someone is in charge (all we see are a few sergeants) their influence seems negligible. Precious minutes passed before cops simmered down and got organized. By then a lot of force had already been used.

     Nowadays much of what cops do winds up on You Tube. Lacking context, what gets depicted is often inflammatory.  Just like making sausage, policing is a messy business. Despite what many might think, cops really are human, and when provoked they’re likely to lash out.  As a retired NYPD sergeant who watched the New School videos aptly put it, “Lots of times some skell [New Yoak lingo meaning a mope] is fighting a cop tooth and nail, then a cop loses control, which is easy to do, and then you lose your temper and somebody videotapes you, and the next thing you know you’re losing your job.”

     That, of course, is no excuse for doing a lousy job.  We spend huge amounts on our police forces, in part so that trained professionals are available to defuse potentially explosive situations. That, of course, is when a steady hand is most needed.  Consider the striking contrast between the videos.  It was the chaotic exterior, with uncooperative “skells”, where the police nearly fell apart.

Click here for the complete collection of use of force essays

     Like the good sergeant suggests, getting stressed-out cops to react appropriately is no easy task.  Here are some things to think about for the next time:

  • Command and control are crucial. Sergeants aren’t enough. Having a captain actively participate was an excellent idea; had one been outside it might have helped immensely.
     
  • There are times for crime-fighting and times for peacekeeping. Student demonstrations definitely fall in the latter.  No “crimes” of any significance were committed, and for all the yelling and tumult there was precious little damage.  Yet officers intent on making arrests chased after delinquents and bottled others up, escalating tensions and needlessly raising the temperature. It was precisely the wrong thing to do.
     
  • Training and more training are key.  It’s not just about public relations: it’s about money.  Processing scores of protesters through the criminal justice system is a phenomenally expensive distraction. Accidentally crippling some bobble-headed youth or running him into the path of a car can easily cost a department the equivalent of a precinct’s yearly payroll.  One need only consider the multi-million dollar settlements resulting from LAPD’s MacArthur Park fiasco to appreciate the consequences of mishandling demonstrations.  Staging regular, quality instruction only sounds expensive until one is confronted with the alternative.

     Getting cops to ignore provocations and make good decisions while under stress may be a tall order, but it’s why society shoulders the phenomenal expense of fielding police forces in the first place.  We can’t just sit around and wait for evolution to provide a more civil society.  It’s up to the police to take the first step.

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For a discussion of perceptual distortion and the police see Criminology and Public Policy, Volume 8, Issue 1, April 2009.


Posted 3/13/09

TASERING A YOUNGSTER IS WRONG,
EXCEPT WHEN IT’S NOT

Should police have zapped a violent 12-year old?

     By Julius (Jay) Wachtel. Word that a Hawthorne (Calif.) police officer zapped an autistic twelve-year old boy struck many observers as incomprehensible. Why did the cop have to resort to a weapon?  Authorities say that the 5-7, 130 pound student grabbed a counselor and repeatedly punched a security guard, then kicked the officer who responded in the groin.  When the youth ran away the cop Tasered him in the back. The darts came out in the emergency room.

     There’s little question that the kid was out of control.  Had it been an adult we would have probably heard no more about it, but the fact of his youth and disability lends the event an undeniable gravity.  As one might expect, his parents filed a legal claim, a prelude to a suit.

     Policing is a fundamentally nasty business. People don’t call the cops to feed them coffee and sweets, and by the time that authorities arrive things have often deteriorated to a point where gaining voluntary compliance is difficult if not impossible. Still, officers can’t fight their way through their shifts, so most get pretty good at settling things without going to the mat. Salesmanship and a command presence are the two most important tools of a street cop’s arsenal.

     Sometimes talk isn’t enough.  For the first century years of American policing there was only one alternative to the gun: the club, an insufferably crude implement that brings officers in close, exactly where they’d rather not be.  In the heat and confusion of battle batons can prove ineffective or, should a blow be misplaced, as deadly as a .44.

     Belt-carried tear gas dispensers, the first effective less-than-lethal weapon, became popular in the 1980’s.  They were supplanted by pepper spray, a powerful irritant that forces the eyes to shut. Alas, in the rough-and-tumble of policing aerosols aren’t always useful. For best effect the stream must strike the face, and preferably the temple, a trick that’s hard to manage unless a target is motionless. And as the writer can personally attest (he was doused during training) pepper spray can seriously impair breathing.  Although the National Institute of Justice determined that the substance is safe when properly used, an ACLU report notes that it’s been associated with respiratory failures and a number of deaths.

     Enter the Taser, a device that propels two darts up to thirty feet to deliver a powerful, temporarily disabling electrical shock.  Simple to use and highly effective, it allows officers to instantly immobilize a moving target at a distance. Police throughout the world champion it as the tool of choice for dealing with combative persons.  Studies in the U.S. have concluded that the Taser has reduced injuries to officers and citizens alike. A string of police shootings recently led RAND to recommend that NYPD, which issues Tasers to tactical units, consider deploying them to patrol officers, giving them a more effective alternative to deadly force than the pepper spray they already carry.

Click here for the complete collection of use of force essays

     On the downside, Tasers have been linked to deaths by heart failure.  Although most medical studies have cleared the device, significant concerns remain about the weapon’s possible effect on the young, the old and those with heart conditions, particularly when repeated shocks are administered.

     Regrettably, Tasers have a rocky history. They’ve been used when force was unnecessary, when less violent methods were available (an electrical jolt is nothing if not violent) and when stunning someone was otherwise inappropriate. Two years ago an L.A. County Jail inmate was permanently disabled when he was Tasered while standing on a top bunk and fell on his head.  Last year a similar misuse led a naked, mentally ill New York City man to plunge to his death from a ledge.  (In a tragic postscript, the commander who gave the order to use the Taser was so remorseful that he subsequently committed suicide.)

     No matter how “safe” Tasers might be, their use must be consistent with expectations of how police ought to behave in a democratic society. Still, it’s important to keep in mind that officers work in an unpredictable environment. Those who lack a partner, as in Hawthorne, are in a particular fix.  Tumbling on hard concrete with a beefy youngster can cause disabling injuries for both, while letting a child run off can put him and possibly others in harm’s way. As it turned out, the youth wasn’t hurt. Stopped in his tracks by the Taser, he didn’t have the opportunity to hit anyone else, nor did he run across the street without looking and get struck by a car.

     No doubt about it, using stun guns on children looks bad -- very bad.  Appearances are important.  Still, the real world is a messy place where not everything can be anticipated.  Instituting flat-out prohibitions or dreaming up excessively complex rules runs the risk of paralyzing cops when decisive action is crucial. And that’s not a risk that either the police or the public should lightly accept.

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Posted 3/1/09

TO ERR IS HUMAN, TO PREVENT IS DIVINE

Admitting that cops make mistakes can prevent tragedies

     By Julius (Jay) Wachtel. The recent tragic killing of an unarmed man by a San Francisco transit cop provoked a deeply polarized response.  Outraged activists pointed to the incident, which involved a white officer and a black victim, as yet another example of how the police treat minorities. They then turned their anger on prosecutors for waiting two weeks before charging the officer with a crime.

     As we’ve mentioned, there’s plenty of reason to believe that the overexcited cop thought that he was firing his Taser.  That’s a conclusion that even the victim’s attorney implicitly conceded.  “It doesn't matter if he was reaching for a Taser or not.  At the end of the day, it's what [the officer] did that counts.” Meanwhile nervous BART officials avoided all talk of race and promised what bureaucracies usually promise when stuff hits the fan: to review their procedures.

    ...the BART Board’s Police Department Review Committee will engage experts in law enforcement to conduct a top-to-bottom review of BART Police policies and procedures. These independent experts will examine police recruitment, hiring, training, and identify best practices. The independent experts will also recommend changes where necessary.

     Departments seldom concede what students of the police have long known: that regardless of training and experience, stressed-out officers can make catastrophic mistakes. For reasons of pride and liability, agencies often rush to lay the blame elsewhere. When a SWAT officer accidentally shot and killed a toddler during a 2005 standoff, LAPD exerted immense pressure on the coroner to conclude that the fatal bullet really came from the father’s gun.  To his credit, he refused.

     Tactical teams usually have the opportunity to prepare and strategize, so in truth they seldom goof that badly.  Patrol officers, on the other hand, rarely have much time to plan.  When their adrenaline-infused decisions prove disastrous, as they sometimes so, departments reflexively (and perhaps, understandably) circle the wagons. On February 6, 2005 an LAPD patrol officer shot and killed Devin Brown, a 13-year old black teen who allegedly tried to run him over with a stolen car. Chief Bratton declared the shooting “in policy” and tried to quell community furor by releasing an elaborate reconstruction of the incident that the D.A. later used to absolve the officer of criminal liability.

     Not everyone jumped on board. The Los Angeles Police Commission, Bratton’s titular superior, overruled the chief and forced a disciplinary hearing. Their squabble wasn’t unprecedented. Years earlier the board rejected then-Chief Parks’ exoneration of an officer who shot and killed a mentally handicapped homeless woman wielding a knife. In the end, the Commission lost -- twice.  By contract, serious discipline at the LAPD is meted out by a normally cop-friendly “Board of Rights,” and it was that panel that ultimately cleared both officers of wrongdoing.

     As we know from the BART shooting protecting one’s own is a lot tougher when there’s video. On January 29, 2005 a vehicle fleeing from San Bernardino (Calif.) deputies crashed. A 21-year old airman just back from Iraq exited from the passenger side. The first officer to arrive, Ivory Webb, ordered him to the ground and approached, gun drawn. After a brief verbal exchange, the excited deputy said what sounded like “get up” three times.  Apparently complying with the command, the man rose.  That’s when the deputy fired three times, inflicting serious, thankfully nonfatal wounds. The nighttime incident was captured on a grainy video by a citizen watching from across the street.

     To citizens and newscasters what the deputy did (he was Black, his victim is Hispanic) was inexplicable; on first glance it seemed like an execution, the same thing that activists claim happened in Oakland. Of course, prosecutors are not lay people. Instead of acknowledging the horrifying event for what it was: a tragedy caused by a pumped-up cop whose brain short-circuited, the San Bernardino D.A. accused him of attempted voluntary manslaughter and assault with a firearm, charges that could bring a sentence of eighteen years.

Click here for the complete collection of use of force essays

     At his trial the officer testified that he had been scared for his life, and that if he said “get up” it was only because he was too rattled to articulate clearly. (This blogger’s audio analysis revealed that the first “get up” was indeed preceded by a “don’t.”)  The officer’s explanation was echoed by a defense psychologist who told the court that when officers are under stress their analytical processes can shut down.  It took jurors only two and one-half hours to acquit the deputy on both counts. Naturally, the officer lost his job and faces a civil suit.

     Pinning on a badge doesn’t make cops superhuman, and it may be that in an atmosphere of guns and violence they’re doing about as well as can be expected. But if we’re looking for ways to minimize lethal flub-ups here are some things to consider:

  • We’ve said before that most cops are reasonably risk-tolerant; if they weren’t, there would be a trail of dead citizens at the end of each shift. It’s also a truism that some cops are repetitively involved in shootings.  Are there ways to filter out police applicants who are too easily rattled?  Too eager to reach for a gun?
     
  • Academies try to incorporate realistic exercises into their coursework.  Yet time and resources are limited, so the tendency is to present proportionately far more “shoot” situations than an officer is likely to experience on the job, where firing a weapon is rarely called for.  Some training programs bring in the real world by having cadets go on ridealongs, but these are usually limited and don’t take place until the end, when poor patterns may have already formed.  There’s clearly a lot more that can be done to help trainees and active-duty cops adjust to the uncertainties of policing while minimizing the risk to themselves and to others.
     
  • Although police work is largely an individual task, there is frequently need for coordination. When multiple officers respond someone’s got to take charge and assure they work as a team.  That was clearly a problem in BART.  The absence of command and control were also evident in a May, 2005 incident in which L.A. County Sheriff’s deputies fired more than one-hundred rounds at an unarmed man during a slow-speed pursuit in a residential area. Videos of the incident demonstrated a wild, undisciplined response hardly befitting the image of an agency that relentlessly promotes itself on reality TV shows.

     An initial step in twelve-step programs is to admit one’s frailties, as little can be done for someone in denial.  That’s equally true here. Pretending that whatever happens, happens on purpose retards progress and exacerbates tensions between citizens and officers, unjustly making out the latter as criminals should their disastrous goofs get caught on camera.

     Honest, dispassionate self-assessment is the hallmark of a true profession. It could prevent unnecessary violence and help defuse tensions in the inner cities. It would be a win for the public and the police.

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Why Do Cops Succeed?     Words Matter     More Rules, Less Force?     First, Do No Harm

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For a recent discussion of perceptual distortions and the police see Criminology and Public Policy, Volume 8, Issue 1, April 2009.


Posted 2/15/09

OAKLAND BART SHOOTING:
A TRAGEDY, YES -- BUT IS IT MURDER?

It’s not the first time that a cop accidentally drew a gun

     By Julius (Jay) Wachtel. On March 10, 2001 Sacramento (Calif.) police arrested a “very drunk” Steven Yount.  Hobbled by handcuffs and leg restraints he kept on fighting, prompting an officer to reach for his Taser. That according to the California Supreme Court was when things went terribly wrong:

“Officer Shrum pulled what he thought was his Taser and fired it at the back of Yount’s upper thigh. It was only then that he looked down at the weapon in his hand and saw he had mistakenly grabbed his pistol”.     Yount survived and sued the police for violating his civil rights. His case is pending.

     On September 2, 2002 Rochester (Minn.) police officers tried to arrest a drunk and belligerent Christofar Atak.  During the struggle an officer went for his Taser.  Or thought he did.  Atak wound up with a bullet in his back. His lawsuit was settled for $900,000.

     On October 27, 2002 Everardo Torres was sitting in the back of a Madera (Calif.) police car, handcuffed and under arrest. When he wouldn’t stop trying to kick out the windows an officer drew her Taser. Or thought she did:

    Officer Noriega...reached down with her right hand to her right side, where she had a Glock semiautomatic pistol in a holster in her officer belt and, immediately below, a Taser M26 stun gun in a thigh holster.  She unholstered a weapon, pointed the weapon’s laser at Everardo’s center mass, and pulled the trigger of her similarly-sized-and-weighted Glock....There is no question that Officer Noriega intended to draw her Taser but mistakenly drew her Glock.

     An instant later Torres was dead of a bullet wound. His family sued.

     On October 23, 2003, a Somerset County (Maryland) deputy sheriff was trying to arrest Frederick Henry for failure to comply with a child support order. Henry ran off before he could be handcuffed. The officer drew his Taser.  Or thought he did.  Moments later Henry had a hole in place of his elbow:

    [The officer] did not realize he had fired the handgun until after the weapon discharged. He immediately told Henry and another witness at the scene that he had not meant to shoot Henry and that he had grabbed the wrong weapon.

     Henry survived to sue the police.

     In these examples officers were carrying Tasers on the same side as their pistols.  To prevent such tragedies most departments now require that stun guns be worn “cross draw,” meaning on the officer’s weak side. That’s how ex-San Francisco Bay Area transit cop Johannes Mehserle, 27, was carrying his Taser X-26 on January 1, 2009 when he helped other officers detain four subway riders who were allegedly involved in a disturbance.

     What happened next was captured on a bystander’s cell phone.  About halfway through the video the officers wrestle one of the suspects, Oscar Grant, to the ground.  During the struggle (Grant is on his stomach, supposedly resisting being handcuffed) Mehserle draws his pistol, stands up and fires once into Grant’s back, killing him.  Mehserle’s hands instantly go to his head.  He and his colleagues seem stunned.

     Days of protests and disturbances follow. Mehserle resigns from the force and goes into seclusion. He is eventually charged with second-degree murder and released on $2 million bail.

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     While no one can know exactly what was going through Mehserle’s mind it’s highly unlikely that he intended to use deadly force.  Transit officers had only been carrying stun guns for three months. Anxious and overly excited, he probably reverted to habit: intending to grab the Taser, Mehserle robotically reached for the far more familiar holster -- the one that held the gun.  According to news reports, bystanders overheard him tell his colleagues that he intended to Tase the suspect. (His comments after the shooting were supposedly contradictory. Still, it’s his state of mind at the time of the incident that’s crucial.)

     There is little precedent for accusing a blundering officer with murder.  An incident in California that led to a lesser charge took place in January 2006, when a badly rattled San Bernardino County Sheriff’s deputy shot and wounded an unarmed passenger after a car chase.  Audio from a bystander video suggests that the deputy told the victim, whom he had ordered to the ground, to get up.  But when the man did so the deputy shot him three times.  The officer steadfastly denied giving the victim permission to rise and said that he thought he was about to be assaulted.

     Prosecutors charged the officer with attempted voluntary manslaughter.  During trial an expert defense witness gave examples of officers behaving oddly during a crisis: “Their analytical process began to collapse. They had so much to do that, literally, they were overloaded.” One officer repeatedly told a suspect openly wielding a knife “show me your hands!”  Why?  Because that (instead of “drop the knife”) was the command he remembered from training.

     Taking this testimony to heart, jurors promptly acquitted the deputy.  As one said, “police officers have to be given the right to make their decisions.  If they make a bad decision in the line of duty, should we...incarcerate them for it? I don’t think so.”

     Ultimately, that’s the point. The deputy was fired, as he should have been, and was sued, as was the victim’s right.  But prosecuting an officer for a felony when they unintentionally make a terrible call serves no purpose, other than to perhaps soothe an angry public. Unlike U.S. Attorneys, who cannot prosecute unless they believe that someone is in fact guilty and there is evidence to prove it in court, California D.A.’s are bound by the ABA’s far less stringent guidelines, which require only that they “refrain from prosecuting a charge that [they] know is not supported by probable cause.” It’s precisely that discretion that enables politically timid prosecutors to ignore their consciences and leave the tough calls for a jury.

     Let’s hope that the Alameda County D.A.’s extraordinary step of charging a cop with murder is based on much more than what on first glance seems to be a tragic yet not unprecedented mistake. If not perhaps Oakland jurors will prove, like their San Bernardino counterparts, to be sufficiently wise to know the difference.

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